The Nature And The Application Of The "Gift To The Children" Clause In Divorce Agreements

When the husband and wife agree to divorce in the marriage registration authority,they will make an agreement in the divorce agreement on such matters as the division of property,the maintenance and visit of children,etc.As an important part of the common property,the house is involved in most divorce agreements.They often gift their building property to children based on their consideration of their children's future life.Through the statistical analysis of judicial cases,the author finds that most of the disputes about the gift of divorce agreement are caused by the revocation of the gift after divorce.Because this kind of gift dispute involves marriage law,contract law,property law and other legal norms,there are great disputes in theory and Practice for this kind of case.When trying this kind of case,the judge usually makes a judgment that conforms to the heart and caters to the most simple value judgment of the public on the premise of balancing the interests of both parties to the greatest extent,because the specific case is more complex in reality And there are different results.Based on the judicial precedent of Chinese courts,this paper analyzes and summarizes the similarities and differences of this kind of cases,and probes into the qualitative and legal application of the gift terms in divorce agreements,so as to propose that this kind of gift agreement should belong to the gift contract,and also have the identity attribute.In theory,it should be preferentially applied to the marriage law of our country.In the absence of specific provisions,it should be applied to the contract Relevant provisions of the law.However,through the analysis of the provisions of Article 8 and Article 9 of the judicial interpretation of marriage law(2),the author finds that the application of marriage law cannot deal with many practical problems in judicial practice.Therefore,on the basis of demonstrating the nature of the gift clause and discussing the application of the law,the author thinks about the perfection of the current law in order to put forward the appropriate solution.Except the last conclusion,the paper consists four parts:The first part:it introduces the different views of academic circles on the nature and legal application of the gift terms,and analyzes the applicable norms according to the identification of different natures.And on the basis of the summary and analysis of judicial cases,this paper introduces the different identification of the nature of the gift terms and the handling of cases in the trial of the gift terms disputes of divorce agreements by the people's court at present,analyzes and summarizes the problems and puzzles existing in the application of law in judicial practice,explores the solutions on the basis of the problems,and paves the way for the following discussion on how to apply the law.The second part:analyze and demonstrate the legal attribute of this kind of gift clause,from the perspective of the property attribute of the gift clause itself and the identity attribute under the background of divorce agreement,clarify the nature of the gift clause,and make it clear that it is both a gift contract and a dual attribute with identity characteristicsThe third part:This paper discusses the legal application of the donation clause in theory,analyzes its legal application in detail,and points out the practical necessity of applying the donation clause of divorce agreement to the contract law.The fourth part:to provide a bold idea for the handling of disputes in this kind of cases,to put forward specific and targeted legislative suggestions for the legal provisions of the right of arbitrary revocation,in order to fully protect the interests of both sides of the gift,in order to provide guidance for the court trial.